Income
Tax Act, 1961--Section 31(1)--Development rebate entitlement to unity of
ownership and use of asset in busi- ness not to be disrupted.

HEAD NOTE:

The
appellant-assessee is a registered firm. It started functioning w.e.f. May 3, 1956 at Purnea as the branch office of the partnership
firm M/s Prayagchand and Hanuman- mal Periwal with its Head Office at Calcutta. The firm consisted of two partners
Prayagchand Periwal and Hanumanmal Periwal.

The
partners had taken loan from Periwal & Co. Pvt. Ltd for erection of cold
storage at Purnea and for its running capital. Later, Periwal & Co. was
taken as a partner in the Purnea Branch for better management and financial
assist- ance. The newly constituted partnership obtained separate registration
under the Income Tax Act, 1922 as well as under the income Tax Act, 1961 and
was separately assessed from the assessment year 1960-61.

In the
assessment year 1959-60 Prayagchand Hanumanmal installed machinery of the value
of Rs.5,80,055 in Sri Mahabir Cold Storage. For one reason or the other
develop- ment rebate on the capital asset, namely, the machinery, was not
claimed till the assessment year 196263 in which year the appellant claimed
development rebate. The Income-tax Officer, and on appeal the Assistant
Appellate Commissioner, disallowed the claim on the finding that the new firm
had neither inherited the claim as a transferee, nor did it amount to a
succession. But on second appeal, the Tribunal held that the appellant firm was
nothing more than the old firm of M/s. Prayagchand Hanumanmal with a change in
the constitution, and the continuity of the business remained in tact; hence
the appellant was the owner of the plant and machinery installed in the
assessment year 1959-60.

The
High Court answered the question referred to it in favour of the Revenue. The
High Court held that the business at Purnea was carried on by the newly
constituted partner- ship firm which itself 470 claimed to be a separate
identity under the Income Tax Act, and had obtained separate registration. The
High Court observed that in respect of the plant or machinery installed by the
old partnership firm at Calcutta, the new firm at Purnea. a distinct
and different assessable identity. could not claim 'development rabate either
under the repealed Act or the 1961 Act.

Before
this Court it was inter alia contended that (i) M/s. Prayagchand Hanumanmal
consisting of original partners, had taken M/s. Periwal and Co. merely for the
purpose of better management and financial assistance; (ii) the old partnership
had been continuing to have its identity as an assessable entity whose
character had not been lost by taking as new partner M/s Periwal and Co. (Pvt)
Ltd. for the purpose of benefit of profits only, and hence the assessee was
entitled to the development rebate under section 33 of the Income-Tax Act.

On
befall of the Revenue it was contended that the appellant was not "the assessee",
nor the owner of the machinery and plant; the owner was M/s. Prayagchand
Hanuman- mal and as such the assessee was not entitled to the devel- opment
rebate.

Dismissing
the appeal, this Court,

HELD:

(1)
Under both the repealed Act as well as the 1961 Act two conditions precedent
were required to be ful- filled for entitlement to development rebate, namely,
the new machinery or plant installed must be (1) owned by the assessee and (2)
used wholly for the purpose of the business carried on by him. There must exist
unity of ownership and use in the business. [475A, F]

(2)
Only the successor in interest of the business, in accordance with the
provisions of the Act, so long as the twin requirements under section 33(1) are
fulfilled, is entitled to the benefit. [475G]

(3)
When the unity of ownership and use of the asset in the business is disrupted
or a branch of an earlier business is taken over by a new rum which exists
simultaneously with the other branches of the old business, the benefit of
development rebate under Section 33(1) does not extend to either firm. [475H]

(4)
The appellant assessee is a new identity under the Act. it is not a successor
in interest of the old firm as per the provisions of the Act. [476G] 471

(5)
Section 33(1) gives right to development rebate only to the owner who has
acquired the ship or installed the machinery or plant. The necessary implication
is that the assessee who claims development rebate should continue to remain to
he the owner of the ship or plant or machinery during the relevant previous
assessment year/years and the owner alone is entitled to the development rebate
till it becomes nil. [476H-477A]